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Wake judge hears motions in remanded Blackwater case

By PAUL THARP, Staff Writer

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A suit against the Moyock-based security firm formerly known as Blackwater returned to Wake County last week after Judge Terrence Boyle remanded the case from the U.S. District Court for the Eastern District of North Carolina.

Judge Boyle sent the case to state court after a Feb. 16 hearing on defendant Xe Services LLC’s motion for reconsideration of his original remand. At the hearing, Boyle told a lawyer for Xe that the original removal to federal court was “specious … not grounded in any fact,” and “not grounded on a supportable basis.”

Boyle said the defendants could not premise their federal removal jurisdiction on “a false statement of facts” and could “not benefit by a removal that had no substance.”

Charlotte lawyer Gary Mauney represents the plaintiffs in the wrongful-death suit brought in 2009 in Wake County by a group of Iraqi plaintiffs and the estates of several others allegedly killed by Blackwater security contractors in a 2007 shootout in Baghdad.

At least one of the contractors, Jeremy Ridgeway, pled guilty to manslaughter and other charges for his role, said Charlotte attorney Paul R. Dickinson Jr., who also represents the plaintiffs.

Lawyers for the defendants noted at the hearing last week before Judge Donald Stephens that other criminal cases related to the incident were still pending in the District of Columbia Circuit.

Raleigh attorney Catharine Biggs Arrowood said that Xe and other defendants appealed Judge Boyle’s remand to the 4th Circuit. They sought a stay of proceedings in state court while that appeal was pending.

She argued that the defendants had two substantial rights that could be affected if the plaintiffs were allowed to proceed in Wake County. First, she said, questions of governmental immunity had not been answered by any court, and until those questions were answered either by the 4th Circuit or the state court, discovery should not occur.

The defendants’ immunity arguments are different from the question of whether Blackwater contractors could be classified as federal officers, which was the basis for the removal to federal court.

Mauney called them different slices of the same pie. In some cases, he said, a defendant’s status as a federal officer provides the basis for immunity, while in others a defendant may demonstrate that he or she was the equivalent of or tantamount to a federal officer. In other cases, a defendant may show that the acts that he or she undertook were at the specific direction of a U.S. officer.

But Mauney said the Blackwater contractors didn’t have authorization from any federal officer to be where they were on Sept. 16, 2007, and they didn’t have authorization to do what they did.

As for whether the contractors were federal officers, in the removal proceeding, the defendants alleged that “The U.S. District Court held in [an] order … that defendants were entitled to remove the case to federal court pursuant to the federal officer removal statute,” according a transcript of the hearing in federal court.

But Judge Boyle disputed whether the court had ever ruled that removal was proper. The defendants had made only a “colorable” argument in support of removal, but never succeeded in convincing the court that Blackwater security team members were “federal officers” within the meaning of the statute, he said.

“The allegation that [Blackwater] was the United States is an allegation but it’s not factual at all, and you can’t benefit from a false statement of facts,” Judge Boyle said.

At the hearing in state court, Mauney pointed out that the United States was not sitting at the defense table, noting that the government had affirmatively rejected the defendants’ argument that security contractors were federal officers.

But Judge Stephens was not impressed. “I’ve heard that before,” he said. “I didn’t accept it then, and I don’t accept it now.”

Mauney said Judge Boyle had looked at the federal officer issue and called it specious.

“This show ought to get on the road,” he said, noting that the case had been pending for 546 days while the defendants removed the case to federal court on a basis that the district court ultimately said was not supported by the facts.

But Arrowood said allowing the case to proceed in Wake County could result in contradictory opinions on the same issue. If the 4th Circuit considers the defendants’ appeal and remands the case to the Eastern District, depending on the nature of the 4th Circuit’s opinion, the Eastern District might issue an opinion that is in conflict with a state court ruling on the same issue.

 “It would be appropriate to defer the [state court] proceeding until the federal issues are decided,” Arrowood said.

But Judge Stephens said he was not inclined to pay much attention to the 4th Circuit’s schedule. “They don’t pay attention to mine. Let’s put this on track,” he said. “If they tell us to stop, we’ll stop.”

Mauney said that the defendants hadn’t even answered the complaint or filed motions to dismiss in the state court action.

Judge Stephens gave the defendants 30 days to file their motions to dismiss based on various theories of immunity. For the time being, the plaintiffs will limit their discovery to the issues set out in the motions to dismiss.

“We want to move it along,” Judge Stephens stressed. If the defendants are not successful with their dismissal motions, he said, “then we will move along with everything else.”

Everything else would include what Arrowood called exhaustive discovery that was served by the plaintiffs prior to the hearing, production of which will concern matters of military intelligence and require State Department approval to produce, in some instances.

“The defendants are prepared to proceed quickly after the 4th Circuit decides,” Arrowood said. “We will look at [the discovery], but we shouldn’t be required to respond or to offer any defendants for depositions until after the 4th Circuit or this court decides these governmental immunity questions.”

Judge Stephens agreed, but he said he will be the one to decide the issues, at least for now. “I’ve assigned the case to myself,” he said.

Mauney said he was pleased that the court is allowing case to go forward. “We’re looking forward to moving the case toward trial, and we think it will be beneficial to have a single judge overseeing the case and making sure it moves along at a brisk clip,” he said.

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